Wednesday, 22 April 2015

The EU response to migrant deaths: protection and prevention – or policy laundering?

Steve Peers

On Monday, EU foreign and
interior ministers adopted a ten-point plan in response to the recent
huge death toll of migrants crossing the Mediterranean. There will be a summit
on Thursday to examine the issue further, and then an EU Commission strategy
proposed on May 13th. But for now, I want to examine the initial
plan.

Overall, this is a very disappointing
document. It’s not only vague on crucial details but more importantly focusses
less on the situation of the migrants (addressing the root causes which cause
them to move, and protection from drowning and persecution) and more on border
control and repression. One point in the plan constitutes a rather crass example
of ‘policy laundering’ – attempting to use a crisis to shove through an essentially
unrelated policy objective.

Let’s look at the ten points of
the EU plan in turn, then examine the ‘Australian solution’ and the ‘Christians
only’ approach which some have suggested. For alternative solutions to the
problem, see the proposals of the UN Special Rapporteur on Migrants, the EU's Fundamental Rights Agency, Patrick Kingsley (in the Guardian), Nando Sigona, and myself.

Reinforce the Joint Operations in the
Mediterranean, namely Triton and Poseidon, by increasing the financial
resources and the number of assets. We will also extend their operational area,
allowing us to intervene further, within the mandate of Frontex;

This is the only one of the ten measures related directly to search and
rescue, although it’s not clear if this is actually intended to be a search and
rescue mission. The mandate of ‘Frontex’ (the EU’s border control agency)
concerns border control, not search and rescue as such. Indeed there is no
mention of search and rescue here, or in the rest of the plan. Nor is there any
express mention in the plan of the recent loss of life. There are no details of
the extent of the increase in financial resources and assets, or the extent to
which the operational area will increase.

A systematic effort to capture and destroy vessels
used by the smugglers. The positive results obtained with the Atalanta
operation should inspire us to similar operations against smugglers in the
Mediterranean;

The ‘Atalanta’ operation concerns an EU military operation against
pirates in the Indian Ocean. It’s clear from press briefings that the intention
is to have another military operation regarding the smugglers. This will
obviously entail significant costs and raises legal questions about the
jurisdiction which the EU Member States have to destroy boats in the waters of
third States or the high seas.

EUROPOL, FRONTEX, EASO and EUROJUST will meet
regularly and work closely to gather information on smugglers modus operandi,
to trace their funds and to assist in their investigation;

These bodies are respectively the EU police cooperation agency, the EU
border control agency, the EU asylum support agency and the EU prosecutors’
agency. The asylum support agency has traditionally had little or nothing to do
with this issue, and there is a risk that some of its funding is diverted.
There is no express commitment to give it extra funds.

EASO to deploy teams in Italy and Greece for joint
processing of asylum applications;

This will defray the cost of processing for those Member States and
speed up processing times for overburdened administrations. It’s not clear
whether this will simply be an application of existing rules which allow EASO
to simply support national administrations, or whether there will be a shift to
genuine ‘joint processing’ by a group of Member States or the agency as such.
That would require fresh legislation.

Member States to ensure fingerprinting of all
migrants;

EU legislation already requires fingerprinting of all short-term visa
applicants (once the EU’s Visa Information System is fully applied, in the next
year or so), residence permit holders, asylum applicants and persons crossing
borders without authorisation. All holders of EU passports (ie EU citizens)
must also be fingerprinted. The only gaps here are non-visa nationals coming
for short-term visits (ie citizens of countries like the USA and Canada) and
irregular migrants who have ‘overstayed’ after a legal entry. However, after the
EU’s Visa Information System is fully applied, the second group (overstayers)
will simply be a sub-category of the first group (non-visa nationals), since
everyone needing a visa will already have been fingerprinted. And proposed
legislation establishing an entry-exit system will require the non-visa
nationals to be fingerprinted too, although it will take a number of years for
that legislation to be agreed and made operational. These various categories of
people are subject to different rules as regards how the fingerprint
information is stored and used; it’s not clear if the intention is to change those
rules.

The very odd thing here is what fingerprinting of ‘all migrants’ has to
do with the issue of migrants drowning at sea in an attempt to reach the EU. It
would perhaps make sense to reiterate the requirement to fingerprint all those
who apply for asylum or attempt to cross the border without authorisation (as
all those migrants who attempt to cross the Mediterranean are doing), but the
plan clearly refers to ‘all migrants’. So we can only conclude that this is a
blatant attempt at policy laundering.

Consider options for an emergency relocation
mechanism;

The concept of ‘relocation’ entails moving asylum-seekers and/or
recognised refugees from the Member States which have an obligation to consider
their claim, or which have recognised their refugee status, to other Member
States. It would obviously reduce the pressure on the Member States which
receive a significant number of refugee claims from migrants crossing the Mediterranean
– most notably Malta, Italy (the island of Lampedusa) and Greece. However, it
would entail either suspending the EU’s Dublin rules on asylum responsibility
in part (requiring a legislative amendment) or encouraging voluntary offers from
Member States which are not responsible under the rules. Both options have been
discussed many times over the years with no success (Dublin amendments) or very
little success (voluntary offers). The wording used here (‘consider options’)
is so underwhelming that little can be expected.

A EU wide voluntary pilot project on resettlement,
offering a number of places to persons in need of protection;

‘Resettlement’ is the process of taking some of the people in other (non-EU)
countries who need international protection and moving them to the EU. This is
the only one of the ten points which offers ‘safe passage’, ie a way for
would-be asylum-seekers to enter the EU without running the risk of drowning
when crossing the Mediterranean. The ‘number of places’ is not specified, and
it should be noted that under EU financial law, a ‘pilot project’ is a
short-term programme using only a small amount of money. Furthermore, the
project is expressly ‘voluntary’. Overall, it seems that this one form of ‘safe
passage’ being offered by the EU is very narrow indeed.

Establish a new return programme for rapid return
of irregular migrants coordinated by Frontex from frontline Member States;

EU law specifies that asylum-seekers cannot normally be removed until a
final negative decision has been taken upon their application. So this refers
to people whose asylum application has definitively failed, or who never made
such an application and have no other ground to stay. There are procedural
rights in the EU’s Returns Directive for irregular migrants, but there is no
mention of them (or the asylum laws) here. Frontex already has a role
coordinating joint return flights; the intention is to devote more effort (and
presumably resources) to removing people from the EU’s Mediterranean Member States.

Engagement with countries surrounding Libya through
a joined effort between the Commission and the EEAS; initiatives in Niger have
to be stepped up.

This is the only part of the 10-point plan that hints that the EU’s relations
with third countries have a role to play. It isn’t clear what this ‘engagement’
will concern. Will it focus on the conditions in the countries of origin and
transit, thereby ensuring that fewer people want to head to the EU in the first
place? Or is the EU only concerned with the repressive aspects, such as
tracking down smugglers and traffickers?

Deploy Immigration Liaison Officers (ILO) in key
third countries, to gather intelligence on migratory flows and strengthen the
role of the EU Delegations.

The intention here is to obtain more intelligence on migration flows,
although it’s not clear what will be done with that intelligence once it’s
obtained. There will be a cost for the EU and/or Member State budgets here.

The Australian
solution?

Some have suggested that the EU adopt
the supposed ‘Australian solution’, of sending boats to stop the migrants
reaching the territory of the EU. In fact this is a highly simplistic
understanding of Australian asylum policy. The Australians do not intercept most
migrants just outside their country of origin or otherwise return them there
directly. Rather the policy is to send asylum-seekers to various Pacific
islands for processing and to live permanently if a claim is successful. Australia
gives the countries concerned significant cash in return. Moreover, Australia
has a very active resettlement policy, recently increasing the numbers of
permits granted from about 13,000 to about 20,000. So the asylum policy is justified by Australia
as a means to stop people ‘jumping the queue’. Also, the policy is underpinned
by indefinite detention of anyone who does make it to Australian shores without
authorisation.

Could this policy be applied to
the EU? There are some big legal problems. The European Court of Human Rights
has ruled that migrants cannot simply be intercepted and returned to third
States unless those States are safe (see the Hirsi judgment); it should be noted that conditions in some of
the States participating in the Australian policy have been strongly criticized
by human rights groups. Also, the EU’s Returns Directive bans indefinite
detention of irregular migrants. That Directive does not apply to asylum-seekers,
but EU asylum legislation applicable from July this year sets many new conditions
regulating such detention. It’s highly arguable that detention of
asylum-seekers cannot be justified (at the latest) once the final decision on
the application has been made, or after the new EU deadlines to decide on
asylum claims have passed. After that point the time limits for detention in
the Returns Directive will apply.

Even if these legal problems
could be overcome, could the Australian solution be replicated by the EU? The
EU would have to find third countries willing to house large numbers of
refugees and asylum-seekers, and pay them to do it. The numbers of migrants involved
in Mediterranean crossings (about 200,000 in 2014) is far higher than those
covered by the Australian solution (25,000 in 2012-13). So, although accommodating
asylum-seekers in transit States is likely to play an important part in any
long-term solution, this is easier said than done; and it’s important to note
that the EU’s 10-point plan makes no mention of this issue.

Furthermore, the advocates for
the Australian solution simply ignore Australia’s resettlement policy, which is
one of the most generous in the world. Its 20,000 permits a year, for a
population of 23 million, scale up to about 50,000 resettlement permits for the
UK, and 450,000 across the EU. When the advocates of the Australian solution start
to talk about that scale of resettlement, we should take them seriously – but not
before.

Christians

Some have suggested that the UK
and/or EU should focus exclusively on admission of Christian asylum-seekers, on
the basis that they have ‘no other place to go’. Does that policy make sense? It’s
undoubtedly true that some Christians face persecution, but so do many
non-Christians – and Article 3 of the UN (Geneva) Convention on Refugees bans
discrimination on grounds of ‘race, religion or country of origin’. It isn’t
correct to suggest that Christians can’t live safely anywhere in any Arab or
Muslim state: many of those States maintain the centuries-old tradition
of letting Christians live without persecution, and indeed there are a large
number of Christians living in Lebanon in particular. And it’s hard to see how
this policy will work. Will Christians alone be rescued from boats in the
Mediterranean, leaving the Muslims on board to sink? And how would asylum-seekers’
claims to be Christians be examined: by making applicants sit a Religious
Education A-level on the boat? Or simply checking (for men and boys) to see if
they are circumcised (and therefore likely to be Muslim) or not?

Comments

The first striking thing about
the EU policy is that it pays little attention to the human emergency that
triggered it: the deaths of hundreds of people, which resulted from a
collective EU decision to stop search and rescue in the Mediterranean. There’s
no express mention of the deaths themselves in the plan, and the Commission
President’s statement on Sunday merely expressed his ‘deep chagrin’ at the deaths
– as if someone had guzzled his last bottle of cognac.

Furthermore, the intention to
expand the existing missions fails to mention any search and rescue aspects,
and there is a very limited reference to expanding one form of safe passage. No part of the plan mentions dealing with the
situation in countries of origin, or helping countries of transit manage the
number of migrants on their territory. Instead, there is a strong emphasis on
expulsion of migrants from the EU. Overall, this leaves the impression that the
ministers aren’t shocked that migrants have died – but rather irritated that
some of them didn’t.

Arguments about the costs of
rescue, or of asylum-seekers reaching the EU, are undercut by the implicit
plans to spend considerable sums of money on a military mission, fingerprinting
of migrants, expulsion, and intelligence gathering. So the argument isn’t
really about economic cost – but the social and political impact of migration.

As for the intention to crack
down on trafficking and smuggling, few will have sympathy for the vultures that
profit from others’ suffering and frequently jeopardise the lives of hundreds
of people. But it seems odd to focus on them in this plan without also trying
to address the broader situation of the migrants themselves – as if the means
by which people make dangerous journeys to the EU are more important than the
reasons why they do this. On this point, the plan resembles the decades-long US
policy of military missions in Latin America, trying to destroy drug crops.
Admittedly, it’s harder to build new boats than to grow more drugs – but then,
the migrants aren’t exactly coming on cruise ships. The policy may well have
the effect of lowering the (already low) quality of vessels used to cross the
Mediterranean, and increasing the cost of migrants' journey. Unless it forms part of
a broader policy which aims to deal with the root causes of migration and the
position of migrants in transit countries, it could make them less (not more)
safe.

3 comments:

Excellent analysis of this crude hotch-potch of public response that our incompetent politicians cobbled together in a couple of hours. That alone says it all: they have had years to address the structural problems underlying these recent flows, and refused to do so. This is just a public relations exercise.